Old Wine in New Bottles:The Value and Path of Integrating Traditional Culture into Judiciary
Modernization is modernization based on tradition.Promoting the great Chinese traditional legal culture is not to blindly adhere to tradition,but to take tradition as the foundation,advance it after inheritance,and realize its creative transformation and innovative development.Unfortunately,the confidence of the country has been lost since the modern era,and the history of modern legal system in the past hundred years has been always in line with the West.Under the influences of the Western culture and civilization,various so-called modern legal systems and judicial institutions have been set up gradually to replace the traditional,but in all fairness,how effective is it?If only from the perspective of the legal profession,the legal relationship of many sensational cases that have occurred in recent years is not considered complex.It is no wonder that whenever there is public outcry,scholars often criticize the public's lack of legal knowledge as experts,emphasize the professionalism of the judiciary,and discuss the negative interference of public opinion with the judges'independent adjudication.It must be admitted that the professionalism of the judiciary and the independent adjudication of the judges is indeed important,and it is necessary for achieving the ends of justice.However,the means is to serve the purpose.If the so-called professional and independent adjudication cannot resolve the dispute but leaves most people with a sense of unfairness and injustice,and creates social contradictions,what is then the advantage of such a"profession"?The question that should be considered is why the gap between the"professional"and the general public's sense of justice is so large.I am afraid the reason for this is that we have forgotten the large difference between Chinese and foreign cultures,and that foreign theories and systems may work well in other countries,but may not work well in China.Chinese traditions have lasted for thousands of years and are not necessarily inferior to those of the West.The most influential and the greatest culture of the traditional era is Confucianism,so the integration of great traditional culture in judicial adjudication should mainly start from Confucianism.Confucianism was founded by Confucius in the Spring and Autumn Period and became a prominent school of thought in the era of contention of a hundred schools of thought.After the reform of Emperor Wu of the Han Dynasty,who"dismissed the hundred schools and revered only Confucianism",it became the unchanged orthodoxy for more than 2,000 years and penetrated into all aspects of the traditional era.Confucianism is extremely inclusive,and it has absorbed the essence of Taoism,Legalism,Mohism and even Buddhism from the outside.The ocean is vast because it is fed by hundreds of rivers.Confucianism is not only the most outstanding culture of the traditional era,but also a kaleidoscope of the various cultural schools of the traditional era.So,how to integrate traditional culture in judicial activities?Traditional culture can be integrated and promoted in the part that is compatible with the law.When encountering legal blanks in the civil field,traditional culture can be used to fill up the loopholes.If there is a conflict between traditional culture and the existing law,attempts should be made to coordinate and moderate.In case adjudication,traditional culture is mainly integrated into the judiciary through the method of interpretation,and the Supreme People's Court can integrate traditional culture when formulating judicial interpretation and issuing typical cases such as the guiding cases,in order to model the judicial work of courts at all levels.The innovation of this paper is mainly reflected in the following aspects.Firstly,connecting the ancient with the modern.This paper attempts to integrate traditional culture into today's judicial activities,to help and improve the latter,and to compensate for the latter's drawbacks caused by a century of Western concerns.Secondly,it proposes a new explanation for the causes of the sensational cases,that is,the reason why these cases have attracted widespread public attention is not simply a technical problem within jurisprudence(Rechtsdogmatik),but lies in the disdain for traditional culture and the neglect of national conditions and public sentiment.Thirdly,theory is linked to practice.The article starts from several real cases,among which there are both cases with bad effects due to the neglect of traditional culture and good cases with unification of legal and social effects due to a certain degree of respect for traditional culture.This paper distills several reasons why judicial activities should make use of traditional culture,and summarizes operable methods and paths for integrating traditional culture into judicial activities.
excellent Chinese traditional legal culturecreative transformationcore socialist valuesjudicial adjudicationjudicial value
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